IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at RANDBURG CASE NUMBER : 23/98 In the matter between : NEW ADVENTURE INVESTMENTS 19 (PTY) LTD MERCIA GLUTZ First Applicant Second Applicant amd BETCHI JOSEPH BENJAMIN MBATHA JABULANI THOMO BOSHOFF BEGI KUBEGA First Respondent Second Respondent Third Respondent JUDGMENT MOLOTO J : [1] The applicants brought an application against the three respondents in the High Court, KwaZulu-Natal. First and second respondents filed answering affidavits in which they claimed they were labour tenants as defined in the Land Reform (Labour Tenants) Act, No 3 of 1996 (hereinafter referred to as Athe Act@) and second respondent also claimed in the alternative that 1 he was an occupier in terms of Act 62 of Third respondent filed no answering affidavit. By order of the High Court dated 29 April 1998, the application against the first and second respondents was transferred from the High Court, KwaZulu-Natal to this Court, presumably in 1 Extension of Security of Tenure Act, No 62 of 1997 (hereinafter referred to as AESTA@).

2 2 2 terms of section 13(1A)(a) of the Act. The application against third respondent was postponed sine die in the High Court. Applicants prayed for, among others, the following orders : - A1 Dat die Respondente tesame met hulle vrouens en kinders en enige ander persoon wat saam met hulle woon op hulle versoek, met hulle toestemming of op hulle aandrang, gelas word om die plaas Franzhoek no 16846, (hierna genoem die plaas ) te verlaat binne 7 (sewe) dae vanaf datum van hierdie hofbevel; 2 Dat die Respondente gelas word om al hulle besittings, insluitende hulle beeste en enige ander vee van die plaas te verwyder binne vermelde 7 (sewe) dae; 3 Dat die Respondente verbied word om terug te keer na die plaas, of om enige beeste of ander vee op die plaas aan te hou; 4 Dat die Balju van die Hooggeregshof gemagtig word, met die bystand van die Suid-Afrikaanse Polisiediens indien benodig, om die Respondente, tesame met hulle vrouens en kinders en enige ander persoon wat op die plaas woon op versoek van die Respondente, met hulle toestemming of op hulle aandrang, en hulle beeste en ander vee tesame met hulle besittings van die plaas te verwyder sou die Respondente versuim en/of weier om gehoor te gee aan die bevel van hierdie Agbare Hof; 5 Dat die Respondente gelas word om die koste van hierdie aansoek te betaal;@ [2] Second applicant deposed to an affidavit in support of the application, as did second applicant s husband and one Denzil Arthur Hopkins, a director of first applicant. First and second respondents filed answering affidavits, to which second applicant replied. [3] According to a pre-trial conference minute dated 13 June 1998, the parties agreed to refer the following issues for decision by the Court : 2 Section 13(1A)(a) provides : A(1A) If an issue arises in a case in a magistrate s court or a High Court which requires that court to interpret or apply this Act and - (a) no oral evidence has been led, such court shall transfer the case to the Court and no further steps may be taken in the case in such court;@

3 3 A(1) Whether the first and second respondents are labour tenants. (2) Whether the first and second respondents are entitled to remain on the farm Franzhoek (3) Whether the first and second applicants are entitled to the relief set out in the Notice of Motion. (4) If the first and second applicants are entitled to the relief, under what circumstances such relief should be [4] The matter was referred for hearing of oral evidence on 12 October In the mean time, the application against third respondent, which had been separated from that against the other two in the High Court, was transferred from the High Court, KwaZulu-Natal to this Court for hearing on 12 October Third respondent was then re-joined in the application against first and second respondents before us. He filed an answering affidavit but no replying affidavit was filed on behalf of applicants with respect to third respondent. [5] Mr Krüger, appearing for the Applicants, conceded at the start of the proceedings that, on the papers, first respondent had made out a case to show that he is a labour tenant. It had been agreed between the parties that the respondents testify first. Second respondent adduced his evidence whereafter Mr Krüger conceded that he too had satisfied the requirements for labour tenancy. Third respondent and, after him, second applicant s husband then testified. During argument Mr Krüger again conceded that third respondent is also a labour tenant. I am satisfied that in all three instances the concession was rightly made. This resolves point 1 of the minute referred to above and as the resolution of points 2 to 4 depends logically on the resolution of point 1, I find as follows on the points referred for determination : (1) first, second and third respondents are labour tenants. (2) subject to the provisions of the Act, the first, second and third respondents are entitled to remain on the farm Franzhoek

4 4 (3) first and second applicants are not entitled to the relief set out in the Notice of Motion. (4) falls away. [6] I turn now to the question of costs. Mr Krüger argued that applicants should not be ordered to pay the costs. He supported his argument by the fact that this court, dealing as it does with social legislation, has expressed itself as not bound to follow the usual approach of the High 3 Courts and the Supreme Court of appeal that costs follow the result. Mr Rall, for first and second respondents, and Mr Groenewald for third respondent argued strenuously for an order for costs against applicants. They argued that right through the prosecution of their case, applicants showed none of the Amilk of human kindness@ that would be associated with social legislation. While I agree with the Hein judgment that this Court is not bound by the practice of the High Court and Supreme Court of Appeal, I am of the view that in this case special circumstances exist which justify following the rule that costs follow the result. These special circumstances relate to: (1) the persistence by applicants in a cause of action based on a common law notice to vacate without any attempt to meet respondents case, and (2) the adducing by applicants of evidence which clearly confirms that third respondent (the only evidence that was adduced on behalf of applicants was with respect to third respondent) is a labour tenant, i e evidence at variance with their approach in (1) above. It is quite clear that applicants knew or ought to have known all the time that respondents were labour tenants. They made no attempts to follow the procedures in the Act. With this knowledge, the applicants must or ought to have known that their common law action was bound to fail. I am satisfied that the respondents are entitled to their costs. 3 Hlatshwayo and Others v Hein 1998(1) BCLR 123 (LCC) at 134 E -F.

5 5 [7] In the two orders transferring first and second respondents and third respondent s applications, the High Court left the question of costs in that Court for determination by this Court. I am satisfied that for the reasons above, respondents are also entitled to costs in the High Court. [8] The following order is made : The application is dismissed with costs including costs of the High Court applications. JUDGE J MOLOTO I agree JUDGE A GILDENHUYS Heard on: 12 and 13 October 1998 Handed down: 23 October 1998 For the Applicants : Adv T P Krüger instructed by Du Toit Roux Attorneys (Centurion) For the First and Second Respondents : Adv A Rall instructed by Pravesh Singh, Nkosi & Chetty (Newcastle) For the Third Respondent : Mr A Groenewald of Loots Attorneys (Vryheid)